Republic v Fred Onyandare

why he had attacked him. That he was also using the spotlight of his torch which was his source of lighting. He told the court that he had not healed to date. 4. On cross-examination he reiterated that it was 18 th September 2025, and he was walking home when the accused person attacked him. That he did not know the reason for the attack. That there was no dispute between him and the accused person. 5. In re-examination he testified that he was not armed with any weapon and he was leaving Adumai Centre on his way home. He reiterated that they had no dispute. 6. PW2 was one Simon Ikor Opuko who testified that on 18 th September 2025 at 2100hours he was at home when he heard some noise. To him it sounded like people were fighting at the rough road near his home which is also a main road and used by vehicles too. He heard someone stating that he had been stabbed by a knife by one Fred Onyandare. He got hold of a sun king light and found the complainant and the accused person and one Ugandan whose name he could not remember. The accused person on seeing him ran to a cassava plantation and the Ugandan just stood at the scene. He saw the complainant bleeding, got hold of his motorcycle and took him to the Hospital. He was later called to record a statement. That the accused person who is also his neighbor was arrested the following day. To him this was an isolated incident and he had not heard of any dispute between the parties. 7. On cross-examination he testified that he had told the truth. That he did not see a weapon and he did not have any dispute with the accused person. He further testified that he did not injure the accused person. 8. In re-examination he testified that he was only but a witness in this case and he did not have any other case with the accused person. 9. PW3 was one Gideon Baraza a Clinical Officer at Moding Health Centre and who testified that on 19 th September 2025 he examined the complainant who had been assaulted on 19th September 2025. He had cut wounds, headache and a painful right hand. He approximated the age of injuries to be 14hours old. That the complainant bled and lost consciousness. That the complainant had also been treated on 18 th September 2025 and medication was administered. He made a diagnosis of cut wound and soft tissue injuries secondary to assault. Judgment Criminal Case No.E500 of 2025 Hon. A.Z Ogange-R.M pg. 2

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He classified the degree of injury as grievous harm as the patient first lost consciousness and bled heavily. Further there were visible cut wounds which were dressed. 10. On cross-examination he testified that the complainant did not go to hospital with any weapon. That the complainant narrated his history but he also saw the injuries which were as a result of a sharp object. 11. There was no re-examination for this witness. 12. PW4 was the Investigating Officer one PC Kevin Wekesa who testified that on 19th September 2025 a case of assault was minuted to him for investigation and two suspects were in custody having been arrested by members of the public. That the accused person had been arrested by members of the public. He took the accused person to Moding Health Center and interrogated the accused person who admitted to have assaulted the complainant. He issued a P3 to the complainant which was duly filled. He also established that the complainant was hit using a stone on his way home by the accused person and one Emmanuel Mukhwana. That the accused person fled the scene. He visited the scene but did not recover any evidence. He prepared the file and charged the accused person with the offence before court. 13. On cross-examination he testified that the accused person recorded his statement and he did not force him to confess. That the accused person had already been assaulted by members of the public. That the accused person assaulted the complainant with a stone and continued punching him and kicking him. Emmanuel Mukhwana took him to the police station and the stone was not recovered. That both the accused person and the said Emmanuel Mukhwana were arrested but it was established that it was only the accused person who assaulted the complainant. 14. There was no re-examination for this witness. 15. This marked close of the prosecution’s case and pursuant to a ruling delivered on 16th July 2026, the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. He elected to give sworn evidence without calling any witnesses. 16. In defense he testified that on 19 th September 2025 at about 0700hours he saw three people enter his compound including a village elder and who informed him that the area chief wanted to see him over a land dispute. He followed them. He did not find the Chief Judgment Criminal Case No.E500 of 2025 Hon. A.Z Ogange-R.M pg. 3

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but instead found police officers who arrested him and took him to Moding Police Station. He was later asked to record his statement and informed that he had injured a person. He refused to record his statement but he was forced to. That the police officers asked him for Kshs. 10,000/= of which he had only Kshs. 4,000/= . That where he stays there is a protracted land dispute over a lease with the complainant. That the dispute was resolved by the Chief to the extent that he would till the land and harvest for the duration of five years according to the lease. However, the complainant sought to evict him after the first harvest and he asked to have his money back. 17. On cross-examination he testified that he sought a refund from the complainant and he was aware that this was a case of assault. 18. This marked close of the Defense case and the court reserved the matter for judgment on 28th September 2026. Analysis and Determination 19. Section 234 of the Penal Code provides for the offence of Grievous Harm as follows: 234. Grievous Harm Any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life. Section 4 of the Penal Code defines grievous harm as follows: “grievous harm” means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense; 20. I have considered the evidence of all the prosecution witnesses, the defence advanced by the accused person and the applicable law. The question for determination is whether the prosecution has proved beyond reasonable doubt that the accused person unlawfully inflicted grievous harm upon the Complainant. Judgment Criminal Case No.E500 of 2025 Hon. A.Z Ogange-R.M pg. 4

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21. PW1 testified that on the material date, at about 9.00 p.m., he was on his way home when he encountered two persons whom he passed. He thereafter felt someone hit him and realised that he was bleeding. He raised alarm, which attracted the attention of PW2. PW2 responded and took PW1 to hospital, where he remained until the following day, 19th September 2025. PW1 subsequently reported the matter at Moding Police Station. 22. PW1 testified that he knew the accused person very well as his neighbour and that, in addition, he had a torch. PW2, who responded to the complainant's alarm, testified that he had a Sunking light and that, by the aid of that light, he saw the accused fleeing from the scene, while one Mukhwana remained there. 23. The applicable principles on identification are well settled. In Wamunga v Republic [1989] KECA 47 (KLR), the Court of Appeal reiterated that evidence of visual identification, particularly in difficult circumstances, must be examined with the greatest care and the court must satisfy itself that the circumstances were favourable and free from the possibility of error before relying on such evidence. The Court further recognised that although recognition of a person known to a witness may be more reliable than identification of a stranger, mistakes in recognition can nevertheless occur. 24. Similarly, in Maitanyi v Republic [1986] KLR 198, the Court of Appeal emphasised that where identification is made at night, the court should interrogate the nature of the light available, its size and its position relative to the person being identified. The importance of this inquiry has been repeatedly reaffirmed by the Court of Appeal. 25. I have applied those principles to the evidence before me. I note that the prosecution did not provide elaborate evidence regarding the intensity or precise positioning of the torch or Sunking light. That is a matter which necessarily requires caution. However, the circumstances cannot be considered in isolation. PW1 was not identifying a stranger whom he had never encountered before. His evidence was that he knew the accused very well as his neighbour. His recognition of the accused was therefore founded upon prior familiarity. In addition, PW1 had a torch at the material time, while PW2, who came to the scene upon hearing the complainant's alarm, had a Sunking light which enabled him to see the accused fleeing from the scene. Judgment Criminal Case No.E500 of 2025 Hon. A.Z Ogange-R.M pg. 5

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26. The evidence of PW2 is equally important not because he witnessed the actual assault, but because it places the accused person at the scene immediately after PW1 raised alarm and provides independent support for PW1's account. PW2 also distinguished the accused person from Mukhwana, whom he said remained at the scene. PW1 himself referred to Mukhwana by name. His evidence was specific as to the identity of the person whom he said assaulted him. 27. The evidence further establishes that the accused was indeed at the scene. This became apparent during cross-examination of the prosecution witnesses and was not seriously disputed by the accused. His case was rather that the complainant was armed and that it was he who had been injured. Thus, the defence does not amount to an alibi or a denial of presence at the scene of the incident. It places him at the very scene where the complainant says he was assaulted, but advances a different account of what transpired. 28. I have considered the evidence concerning Mukhwana. PW4's evidence was general and did not explain in detail how the investigation ultimately came to the conclusion that the accused, rather than Mukhwana, was responsible for the assault. I therefore do not treat PW4's generalized account as independent proof of the accused's participation. The issue must instead be determined from the substantive evidence placed before the Court by PW1 and PW2, considered alongside the accused's own account and the medical evidence. 29. The complainant's account is further supported by what occurred immediately after the assault. PW1 raised an alarm while bleeding, and PW2 responded and took him to hospital. PW1 was admitted until the following day. His conduct immediately after the incident is consistent with a person who had just suffered a serious physical assault. He thereafter reported the matter to Moding Police Station. 30. The medical evidence provides further confirmation that PW1 was in fact seriously injured. PW3, the clinical officer, examined PW1 and observed visible cut wounds, profuse bleeding and evidence of loss of consciousness. On the basis of his examination, he formed the opinion that the injuries amounted to grievous harm. His evidence concerning the injuries was not materially challenged. 31. The remaining and more contentious question is whether the accused was the person who inflicted those injuries. On this issue, the Court must guard against simply equating presence at the scene with Judgment Criminal Case No.E500 of 2025 Hon. A.Z Ogange-R.M pg. 6

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participation in the offence. I have therefore considered the evidence cumulatively. 32. I have further considered the alleged land dispute raised by the accused. The issue was put to the prosecution witnesses, but they denied the existence of such a dispute. In any event, the existence of a dispute or absence thereof is not an ingredient of the offence. Motive, where alleged, is distinct from proof of the actus reus and identity of the perpetrator. The prosecution was not required to establish a motive if the substantive evidence otherwise proved the offence. I therefore find that the alleged land dispute does not raise a reasonable doubt in the prosecution case. 33. As regards the alleged confession or admission said to have been made by the accused at the police station, I have not relied upon it. The admissibility of confessions is governed by section 25A of the Evidence Act and the statutory safeguards applicable thereto. The finding in this case is therefore based upon the other admissible evidence on record and is independent of the alleged police station confession. 34. Having considered the evidence in its entirety, I am satisfied that this is not a case resting solely upon an untested assertion of identification made under poor lighting conditions. While the Court remains mindful of the caution required in dealing with identification at night, the evidence comprises recognition by a person who knew the accused well, the presence of a torch in the hands of PW1, PW2's observation of the accused fleeing from the scene using a Sunking light shortly after the alarm was raised, the accused's own placement of himself at the scene, and medical evidence independently establishing that PW1 had suffered grievous harm. 35. I have tested the evidence with the necessary caution and have considered the possibility of error. I find, however, that the circumstances taken cumulatively point to the accused as the person who assaulted PW1 and that the defence has not raised a reasonable doubt on that conclusion. 36. I accordingly find that the prosecution has proved beyond reasonable doubt that PW1 sustained grievous harm and that the accused unlawfully inflicted that grievous harm upon him. The charge is therefore proved to the required standard. The accused person is convicted on the charge of Grievous Harm contrary to Section 234 of the Penal Code under section 215 of the criminal procedure Code. Judgment Criminal Case No.E500 of 2025 Hon. A.Z Ogange-R.M pg. 7

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JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 28TH DAY OF SEPTEMBER, 2026. Fred Onyandare-The accused person Mr. Rotich Prosecution Counsel Court Assistant: Paul Otieno A.Z. OGANGE RESIDENT MAGISTRATE 28.09.2026 Judgment Criminal Case No.E500 of 2025 Hon. A.Z Ogange-R.M pg. 8

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